By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

There’s been an awful lot of discussion around this blog regarding a landlord’s liability for personal injuries and property damage occasioned to tenants and third parties. It would seem like the landlord is exposed in all manner of fronts for all manner of different circumstances. Appearances notwithstanding, the blog readers will know that the issue of notice, control, and an opportunity to remedy are all important in California in determining whether a landlord owes a duty to protect someone from injury. If they do, more forward-planning readers might be thinking: “Well I’ll just protect myself by inserting a clause in my lease agreement that waives the tenant’s rights against me.” There are two problems with that.

The first is that in California, any such language is prohibited by statute (Civil Code §1953) and public policy. The statute provides that unless the lease is presented to the lessee before she takes possession of the property, any provision in a lease which purports to waive the lessor’s liability to the landlord for breach of a duty which leads to personal injury or property damage is void. This might suggest that if you show the lease agreement before the tenant takes possession, you might be able to work around it. Not so. Case law takes this exception away in the case of residential leases. The public policy behind it is that housing is important and difficult to come by, so a person should not be forced to waive these rights just to get a great apartment. So in California, you cannot require your tenant to waive the right to sue you for these types of injuries.

The second problem is that any such release would not inure to the landlord’s benefit regarding those other third parties who visit your tenant and get injured. The landlord still has to protect them from potentially dangerous conditions of which he is or should be aware, over which he has control, and over which he has an opportunity to exert that control. If he does, he should fix the problem, warn about it, or do something to prevent injury or damage to that third person.

It is always best to get counsel to review a lease agreement or draft it for you so that the agreement puts into effect those things you need to be in effect, does not have unnecessary verbiage (such as a clause referenced above), and which clearly spells out each party’s responsibilities, obligations, and rights under the agreement. A good lawyer can help the landlord or the tenant get what each needs. I recommend employing one.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

The impending new year offers the perfect opportunity to make sure your “house” is in order, both literally and figuratively. No matter how unappealing it may sound, getting all of those nagging little tasks off your must-do list is the perfect way to start 2010 off on the right foot. And, let’s be honest, dealing with property insurance is one of those items that fits squarely on this list. No one loves dealing with insurance, but we all have to. So take these last few weeks of the year to make sure that you have all the insurance necessary to protect your property. And if you’re feeling really ambitions, you can even to do a little research to see if there are any plans better than your own that may save you some money and offer a little more protection against the unexpected.

Landlord Property Insurance
It may sound trite, but landlord property insurance really is your best friend. Not only will it protect your physical property, but it will also protect you from lost revenue. If, for example, you are unable to rent out one of your units due to damage or if you expend legal fees in a tenant dispute, landlord property insurance may just have you covered, depending upon your policy. This type of insurance generally covers building damage caused by fire, lightning, wind, hail, cars, or collapse from ice, snow, or sleet. It also covers the landlord’s personal property (even if it’s being used by tenants) or in some other capacity on your property. This could include relatively high-ticket items like appliances and landscaping machinery such as snow blowers and lawnmowers.

Liability Insurance
No matter how meticulous you are about maintaining your property and making sure everything is as safe as possible, the truth of the matter is that things happen over which you have no control. Particularly when you bring the wild card of tenants into the equation. You can provide them with all the guidelines in the world, but it still doesn’t guarantee that tenants will follow them or that accidents won’t happen.

Thus, the importance of liability insurance. Liability insurance covers you in case third-party compensation due to negligence becomes necessary. While meticulous maintenance and attention to your property can go a long way toward protecting you against a negligence claim, the bottom line is that all it takes is a tenant’s trip over a loose floorboard to put you in danger of a liability claim.

Flood Insurance
Flooding is one of those natural events that may very well seem unlikely … until it happens, that is. Be aware that even if your property is insured, most property insurance policies do not cover flood insurance. The truth of the matter is that, particularly if you live in a high-risk flood zone, flood insurance can be expensive. But it’s also true that even an inch of water can wreak serious havoc on both your property and your possessions.

To educate yourself on what you do and don’t need in terms of flood insurance, visit the National Flood Insurance Program website. One final note about flood insurance: Most policies will not cover your tenants’ possessions should they be damaged by flood. Be sure to let your tenants know this ahead of time and recommend that they insure their belongings (again, especially in high-risk areas).

And if you’re still not convinced of the importance of insurance, consider this: Nolo cites insurance as one of the top ten deductions for landlords. “You can deduct the premiums you pay for almost any insurance for your rental activity. This includes fire, theft, and flood insurance for rental property, as well as landlord liability insurance. And if you have employees, you can deduct the cost of their health and workers’ compensation insurance.”

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